Appeals court judges Brian Hagedorn (left) and Lisa Neubauer are running for the seat to be vacated by longtime Justice Shirley Abrahamson.
Assembly Speaker Robin Vos said the lame-duck session was about restoring the “balance of power” in Wisconsin. Like Vos, I’m also interested in restoring balance in Wisconsin, except my idea of balance means a liberal majority on the Wisconsin Supreme Court. It is the best way to fight the recent power grab by Vos and Senate Majority Leader Scott Fitzgerald.
In 2018, with the election of Rebecca Dallet, liberals narrowed the conservative majority on the high court to 4-3. If liberals win the next two elections, they would hold a majority by the summer of 2020.
In the first election, liberals have to defend one of the three seats they currently hold. The long-tenured liberal Justice Shirley Abrahamson is retiring and two candidates so far are running to take her place. Lisa Neubauer, the chief judge on the state appeals court, is considered the liberal candidate and Brian Hagedorn, an appeals court judge, the conservative choice. Of course, both candidates will deny the label because of the silly song-and-dance where we try to pretend these offices don’t have partisan leans.
Democrats are rightfully angry and, if they can channel their anger into this Supreme Court race (April 2, 2019, is the general election), Neubauer will be in a good spot to win. That’s particularly true if liberals sell the message that a liberal court would act as a check on a Legislature that has recently given itself a massive amount of power. The Republican Party of Dane County is already preparing for such challenges. This week it invited members in an email to a fundraiser for Hagedorn, saying that “Undoubtedly we will see some very important cases involving the balance of power between the executive and Legislature come before the court in the next 2-4 years. It’s crucial that Judge Hagedorn is elected to the court.”
The last time there was a Supreme Court race in the shadow of controversial legislation, conservatives won the election. Post-Act 10, conservative Justice David Prosser narrowly beat out liberal candidate Judge JoAnne Kloppenburg. However, that was a time when both sides were fiercely engaged: those who hated Act 10 and those who loved Act 10.
I don’t see the same thing happening this time. Republicans were able to sell Act 10 as a harsh but necessary bit of fiscal emergency. They cast teachers and state workers as whiners who were unwilling to tighten their belts for the health of the state. This time around, few conservatives, outside of smug legislators, seem all that proud of the lame-duck bills.
Honestly, the controversy over the lame-duck package might be what pushes Neubauer’s campaign over the top. If Hagedorn loses in April, the first people he should blame are Vos and Fitzgerald.
If Neubauer wins in 2019, liberals are in great shape for the 2020 Supreme Court election, when Walker-appointee Dan Kelly will almost certainly be challenged. The election falls on the same date as Wisconsin’s presidential primary, the very same primary Republicans unsuccessfully tried to move in the lame-duck session. It’s likely that multiple Democrats will still be vying for the presidential nomination when Wisconsin has its primary. On the other hand, President Trump, still extremely popular among Republicans, probably won’t have a serious primary challenger. A contested Democratic race will draw more voters than a nearly-ceremonial vote for Republicans.
In 2016, around 100,000 more Republicans than Democrats voted in the presidential primary. Conservative Justice Rebecca Bradley won on that same ballot by about 95,000 votes. It’s safe to say the extra Republican turnout was crucial in securing Bradley a full term on the court.
If Neubauer and the 2020 liberal candidate both win, liberals would control the Wisconsin Supreme Court with a 4-3 majority. It would be a majority that sticks around for a while. Barring retirements, the next liberal justice up for reelection is Justice Ann Walsh Bradley in 2025. If liberals can win the next two Supreme Court races, they’ll likely hold the highest court for at least half a decade.
A liberal majority on the Wisconsin Supreme Court opens the possibility of overturning some of this awful lame-duck legislation. The court could also act as a check on the next round of redistricting and on regulatory cases pertaining to Foxconn, which would go directly to the high court.
A liberal majority would have ample justification to reexamine, and potentially even overturn, Wisconsin’s voter ID law. Even if the Legislature tried to work around the court’s restrictions, the veto pen of Gov. Tony Evers would prevent any new voter ID legislation from becoming law.
There you go, Robin Vos, your beloved system of checks and balances at work!
Alan Talaga co-writes the Off the Square cartoon with Jon Lyons.
